Dear Claudine,

I have been living with my partner for 21 years in his house and for all intents and purposes we have been living as husband and wife, though we are not married. My partner sadly died last August , and left his property to his two children. I now find myself in a situation where after 21 years of living in a property which I considered my home, I have been told that I have no legal entitlement to this property or even to continue residing there. My partner had always assured me over the years that his property was also my home and that he would make provision for me to reside there for my lifetime, if anything were to happen to him. I am absolutely devastated not only by his sudden passing, but also that he has failed to make provision for me in his Will, essentially leaving me destitute. Is there any action that I may take which would allow me to remain in the property?

Thank you,

Majella

Dear Majella,

Thank you very much for your letter. I can only imagine how traumatic these past few months have been for you, and sadly the situation which you have found yourself in is an all too common occurrence. I note that you had been in a relationship with your partner for 21 years, and that you had both lived in his property for all of that time, which you also considered to be your home. Since you were never married, you do not have any statutory right to a share in your partner’s Estate. If your partner had died as a result of an accident, you might possibly have a claim as a statutory dependent, pursuant to Section 1 (1) (c) of The Civil Liability (Amendment) Act, 1996, which extended the definition of “dependent”, to include:-“A person who was not married to the deceased but who, until the date of the deceased’s death, had been living with the deceased, as husband or wife for a continuous period of not less than three years”. There has been no equivalent extension to the Succession Act, so it is has no application where a person died of natural causes. It is therefore necessary, to decide if some equitable remedy is available. The Courts have developed the Law of Proprietary estopple to cover such cases. However, the development of the law has been slow and cautious and to a large extent each case is decided on its own merits. In order to raise an estopple or presumption in your favour, you must show that you moved into the house and remained there on the promise that you would have this house or at least have the right to live in this house for the rest of your life. If a Court accepted such evidence, then it is likely that the Court would hold that you had a right of residence for life in the property, rather than ownership of the property itself. In that way, the beneficiaries of your partner’s Will could still inherit the property, but this would be postponed until your death. Therefore, the promise made to you and the terms of your partner’s Will could both be met. Alternatively, the Court may make an Order directing that you receive a lump-sum payment from your partner’s Estate but likewise this would be conditional on your ability to prove that your partner promised you the house or a right to live in it for your lifetime. If you can provide this evidence, then it will be necessary to issue an Equity Civil Bill claiming proprietary estopple and setting out the grounds upon which such estopple is claimed. You might like to consider the enclosed and revert to me if I can be of further assistance.

With Every Good Wish

Claudine